The Brain Death Wars

When does a human life end? A 2010 monograph by a rabbinic body, a recent book by an independent scholar, and a forthcoming book by another rabbinic organization are the most recent entries in what is among the most discussed halakhic debates of recent times. “Brain death” occurs when patients have incurred brain damage that renders them unable to breathe independently. Increasingly, ventilators can keep their hearts and lungs going. If an absence of heart and lung function is the standard of death, these patients are still alive; therefore, their organs may not be harvested for donation to others. Influenced by this new reality, a 1968 congressional report advocated accepting brain death as the standard of death.

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The Heart or the Head?Jewish Ideas Daily. The affirmation of human dignity finds practical expression in the thoroughgoing prohibition on murder and in the traditional principles of pikuah nefesh, doing whatever it takes to save a life, and k’vod ha-met, respect for the integrity of the deceased. But what happens when these values seem to conflict?

The stakes, on both sides of the issue, could not be higher. If a brain-dead patient is in fact still living but we harvest his organs, we have killed him. If the patient in fact dead but we wrongly fail to harvest his organs, a person in need of them may die on our account. What do Jewish sources have to say about these questions?

Perhaps unsurprisingly, the question has no agreed-upon answer. The Talmud (Yoma 85) teaches that if there is any chance that a person under a collapsed building is alive, one must try to save him, even in violation of Shabbat. However, as soon as the person’s breathing stops, there is no license to violate Shabbat in order to reach him. Some say this means that human death occurs when breathing stops. Others disagree, on the basis of Rashi’s comment that the distinction applies only if the person is not moving; if a person has motor function, he is still alive.

Those who would accept brain death as halakhic death point to the Mishnah (Oholot 1:6) saying, in the context of animal death, that a decapitated animal is considered dead. If we analogize to humans and consider brain death a functional decapitation, a separation of the brain from the body, it follows that brain death does qualify as death in Jewish law, so that organs can be harvested at this stage. But, of course, opponents of the brain death standard reject this analogy. Neither position can consider itself proven on the basis of talmudic sources.

In the absence of clear precedent, how have halakhic decisors proceeded? The approach taken is shaped by the decisor’s understanding of larger questions of how Jewish law works. The Israeli Chief Rabbinate, following a Religious Zionist approach that seeks a state based on a halakhah applicable to real life and sees the need for a sufficient supply of organs in Israel, has been fairly accepting of the brain death standard; Religious Zionist Rabbis Avraham Shapira, Mordechai Eliyahu, and Shaul Yisraeli have supported it. The most vocal opponents of the brain death standard are Haredi, including Rabbis Eliezer Waldenberg and Shmuel Wozner.

The American picture has been more complicated. The Rabbinical Council of America (RCA), in a controversial 1991 vote, adopted the brain death standard, which America’s ultra-Orthodox Agudath Israel opposed. But in 2010 the RCA published a 110-page brief effectively reversing its previous position. Though the document declares that it is “not intended as a formal ruling,” its thrust is that an observant Jew should donate organs only after the cessation of breathing (by which time many organs are medically unusable). The International Rabbinic Fellowship (IRF), a nascent rabbinic confederation to the left of the RCA, has already released a statement declaring that “brain stem death is a halakhically operational definition of death.” IRF is preparing a book of its own on the subject; the editors have commissioned rabbis, doctors, and ethicists to provide what is meant to be a counterweight to the RCA position.

In between the two organizations, Rabbi David Shabtai, a young doctor specializing in Jewish medical ethics, has published Defining the Moment: Understanding Brain Death in Halakhah, the most extensive treatment of the issue to date. Shabtai examines the relevant classical halakhic texts. He closely analyzes—and charitably constructs—many contemporary positions. His skilled summation and analysis of the existing material will probably make this the book of record for some time. But he does not take an overt position on the great question.

The uncertainty regarding brain death is in part due to the opacity of the great rabbis of the 20th century. For instance, the position of Rabbi Moshe Feinstein, the 20th century’s pre-eminent decisor among the American Orthodox community, is bitterly debated by his disciples and interpreters. Rabbi Moshe Tendler, Feinstein’s son-in-law and student, who holds a Ph.D. in microbiology, has strongly advocated the brain death standard and claims that Feinstein did as well. But the great decisor’s son, Rabbi Dovid Feinstein, does not agree. Shabtai’s book devotes five chapters to Feinstein’s somewhat obscure responsa on the subject, noting cases in which Tendler’s translations do not necessarily render the plain meaning of the text.

There is similar debate concerning Rabbi Joseph B. Soloveitchik (“the Rav”), the great talmudist and intellectual father of American Modern Orthodoxy in America, with the added complication that he did not write on the subject at all. Shabtai’s book—which, he explains, “omit[s] the opinions of those halakhists who have not left a written record”—does not discuss the Rav, leaving his position to be battled out between the RCA and IRF. The IRF book will include interviews with RCA executive members of the 1970s and 1980s who claimed that the Rav endorsed the brain death standard; RCA’s publication cites close students of Soloveitchik who say he never took such a position.

There are four major reasons why the brain death issue continues to spur such controversy. First, the issue has concrete life-and-death repercussions. Second, it reflects the deeper question of whether halakhah should be understood as a formal set of rules or a more pragmatic system. More, the positions of the great 20th century authorities of record are at stake, along with the related question of who will be the 21st century’s interpreters and inheritors of their legacies. Finally, we can anticipate that technological and medical advancements will present more of these questions of medical ethics; the brain death debate will set important precedents for the way they are determined.

Shlomo Zuckier is a rabbinical student and Wexner Fellow at Yeshiva University. He was a 2011-2012 Tikvah Fellow.

I'm flummoxed as to the author's comment about Rabbi David Feinstein. You can watch a video interview with Rabbi Dovid Feinstein about this issue at www.hods.org. Below is the transcript of the video.

TRANSCRIPTION OF VIDEO

Rabbi Dovid Feinstein:
My father’s position was very simply that the stopping of breathing is—the point of—that’s death. It doesn’t matter if the heart is functioning or it doesn’t function. As long as he stops breathing he’s considered dead. That’s the way he explained the Gemara in Yoma, that’s the way he said they always did in Europe when the Chevra Kadisha would test if a person is dead or not. He always used to test his breathing and nothing else.

I’ll repeat again the same thing: If the breathing has stopped, then he’s considered dead. And that’s it, nothing else.

Interviewer:
Even if the heart’s still beating…

Rabbi Dovid Feinstein:
Right.

Interviewer:
Right.

Rabbi Dovid Feinstein:
And anything else is, not a criterion, that’s all. Now if all those guidelines go with those guidelines, he would agree with it and if it doesn’t, he doesn’t agree with it.

But I’d understand, though, I mean once the person is dead and someone’s available to give the organ, why not?

Interviewer:
Right. Do you think Rav Moshe would have encouraged people to sign organ donor cards?

Rabbi Dovid Feinstein:
I doubt it, but I don’t know.

Interviewer:
In your opinion, what’s the reason that Rav Moshe’s opinion on brain death is so shrouded in—into mystery, or is it many different sides on how to understand Rav Moshe?

Interviewer:
Right but when Rabbi Mordechai Tendler wrote up the Health Care Proxy for the RCA, when Rabbi Moshe Tendler wrote up the Health Care Proxy, many people came out that were saying not necessarily he is, that he has a real understanding of Rav Moshe. Many people were saying, were voicing that opinion.

Rabbi Dovid Feinstein:
It never changed. It depends how you want to word it. If I tell you cessation of breathing, and you say, oh, that’s brain death, is that, I don’t agree with that; I don’t know anything about brain death. Quote me correctly. That’s all, nothing else. And that’s the whole argument against Rabbi Tendler.

Interviewer:
Cause he translated cessation of breathing as brain death.

Rabbi Dovid Feinstein:
Yeah, fine. He might be 100% right. I’m not even disputing the point. But what’s the difference. He could say, this brain death cannot breath and therefore he’s considered dead. That’s the way it should be worded. He was very makpid that his words should not be changed. Quote him as is. He cannot breath. Nothing else.

Interviewer:
So it was just due to the wording . . .

Rabbi Dovid Feinstein:
That’s it. So I’m saying so, that was the dispute, the original dispute, there were people disputed to Rabbi Tendler’s opinion that brain death is stopping of breathing. That’s all. And if he’s 100% right, no one’s going to argue with him.

Interviewer:
So… so, you’re saying, in your opinion, if we could—if it’s proven medically, what Rabbi Tendler’s saying, that that would definitely be Rav Moshe’s opinion.

Rabbi Dovid Feinstein:
Right, a hundred percent.

Interviewer:
But you’re not sure that it has been proven, you’re saying.

Rabbi Dovid Feinstein:
I don’t—I have no idea. I’m not saying I’m sure, I’m not sure. It’s not my field. I don’t know. My father ZT”L's position of what constitutes death is when a person cannot breathe on his own. It doesn’t matter if his heart is working or is not working.

Interviewer:
Would it then be your opinion that Rav Moshe then would encourage organ donation in that situation?

Rabbi Dovid Feinstein:
One has nothing to do with the other. If you’re talking about here’s a patient available for a heart transplant, fine. He would definitely encourage it. If you’re talking about putting it into the place— into the, ah, tank or whatever you want to call it, I doubt if he would agree with it. I can’t vouch for it, but I doubt it. I think my whole purpose here is just to verify the position of—stopping of breathing. And I think, ah, my services are ended.

R. Shabtai appears to be partisan based on: a) what he has written to promote the book; and, b) the telling haskama of R. J.D. Bleich that is printed in his book (that can be viewed in the preview available on Amazon).

For rabbis ancient and modern to attempt a definitive answer to "brain death" is astounding. The most advanced scientific neurological experts have just been upended in their judgements of brain death. Because technology is always attempting to jump forward from a previous state, it really is a moving target to determine brain death. Today, electronic scanners of the brain have discovered that in too many cases, patients declared brain dead aren't because the scanners have detected electronic chemical reactions in the brain neurons. The patient is "locked in" (yes, that's the scientific terminology so far). The patient is aware of everything in his environment, but can't move or speak or react. Sometimes a very patient physician can elicit eyelid flutter or eye movement as responses to some stimulae. There has been a recent case in England where the patient was supplied with an eye activated machine that allowed him to communicate albeit still "locked in". He requested euthanasia, was rejected by the courts, and died about two weeks ago because he refused all nourishment. However, those biomedical technicians are still at it-so who knows what lies ahead. I would strongly suggest that this is not an area of rabbinical expertise or indeed of some physician who hasn't kept up with with his/her medical advances. The decision and debate has now become much more difficult for rabbis, doctors, family and community.

Mildred- locked in syndrome is well known in medicine and it is a situation totally different from brain death. I think the studies you are referencing relate to persistent vegetative state(PVS), something again very different from brain death. Your statement regarding the moving target is actually true of determining death in general, not just brain death. We have to continually think about what it is that makes us a human being and science contually offer us new and different ways of measuring things.

Sam- Read the Haskamot carefully with what IH stated in mind. I think that R. Schwartz in particular was very careful in his choice of words.

Thanks Noam. Perhaps I am presuming something else in your reply: that the whole area is not the province of rabbis. While the rabbinical disputation is perhaps some kind of intellectual theoretical exercise, I tremble at the thought that the decision of brain death should ever be left solely to their judgements. While no mention of PVS was cited in the article, I wonder if the rabbis are aware of that phenomenon. As an aside, I also deplore the manner of death when the patient is certifiably brain dead. The horific manner of death is condoned by the various religious in our society and they refuse to accept more merciful endings available in the scientific community. For the record, I don't believe science can replace G-D. I do think science as it matures, can help us realize the awe of creation.

Mildred- The comment section is not adequate for an in depth discussion of how Orthodox Jews or society as a whole determine death. I can assure you that great Rabbis assemble large amounts of information and consult with experts so that they can understand the subject material about which they have to make a ruling.

Noam-I appreciate your personal belief about the wisdom of great Rabbis. I'm afraid I can't internalize the same confidence. For me it's Abraham and Moses, period. I don't think they classify as Orthodox Jews but I admire your position.
Well, I can include Abraham Heschel. And maybe a few others. Nevertheless, I respect your stance and I hope you can respect mine. I think we are both pieces of the mosaic that exemplifies our shared history, tradition and destiny. To a 120 Noam.

Mildred: I don't think Noam meant to get you into a conversation on becoming Orthodox (or even knew you weren't). But your problem seems to be misunderstanding a rabbi's role in the Orthodox world (what Noam was alluding to). I do not mean to speak for Noam, though, in my answer. Someone has to decide when death is. The law needs to in order to define murder or for contracts and estate law, etc. At the very least the law can say if a person has passed x threshold then even though the government won't pronounce the person dead, her caretaker can make the decision for her to die. But that still means someone needs to make the decision. And much will inform that decision. Perhaps the person will read what some of our thinkers have written on the subject. So she will read the greatest philosophers and ethicists of our time. Maybe she will look back 100 years and see what thought as then to see how ideas can change over time so she can be properly skeptical of the modern ethicists. But in Orthodox Judaism many of our ethicists are also ordained rabbis, because being a rabbi nowadays means passing a test on Jewish law, which implies some familiarity with Judaism's ethical literature (there can be some disconnect, unfortunately, but continue). Being a popular and successful rabbi means being a leader who thinks about the great questions and through experience and study of our literature has the wisdom to give advice. And that's about it. But someone has to decide and I don't know why a rabbi deciding scares you more than an ethics commission deciding. As you point out, being a medical doctor doesn't give you a whole lot of extra credibility because medical standards themselves keep changing. It really is an ethical issue and it concerns me that you (impliedly?) give greater credence to secular ethicists than to rabbis solely because they are religious.

Mr. Berman: don't be so flummoxed. R' Feinstein does not come off well in this transcript, appearing himself to be flummoxed (and a jerk -- I don't know if he is or not, but wow is this a bad transcript). First he asserts that death is when a person stops breathing, even to the extent of citing the Chevra Kadisha in Europe -- seemingly irrelevant to the modern question of a person who is definitely breathing but would stop breathing if taken off machines. Then later he makes mention of someone who cannot breathe on his own. So is it if he stops breathing or whether he can no longer breathe on his own? What if he can't breathe on his own but can learn tora and hug his kids? I mean what kind of simplistic and stupid position is that? That's why rash"i in yoma says also not moving... So let's assume that's what he meant (nothing he says is clear no matter how many time he asserts it is), it still leaves open the question -- did his father mean when a person stops breathing (ala Chevra Kadisha in Europe) or when he can no longer breathe on his own and has no other external motor functions? That is can we keep the guy on machines while being harvested or do we need to take him off ready to pounce as soon as breathing stops. And are we even allowed to do that? Is that murder? It seems R' Feinstein is just skirting the issue. I have no idea why he thinks he's contributing anything to the discussion or event or his father's position on the topic in this interview.

Mr. Zuckler, you say: it reflects the deeper question of whether halakhah should be understood as a formal set of rules or a more pragmatic system. How does it reflect that? Please explain. Even if it's understood as a formal set of rules, they still need to be explained -- as you mention at the beginning, the traditional sources just don't give us enough detail to even try to apply a formal set of rules. So we must rely on the views of people who might understand what the Jewish perspective is, taking into account modern discoveries (and taking into account that modern discoveries may not be the whole picture).

David: If the Chief Rabbi of London (England?)Lord Sachs pronounced me dead I would die content. He is an Orthodox Rabbi. However he's not just any Orthodox Rabbi. You know, there are doctors and occasionally a DOCTOR, There are professors, and every once in a while a PROFESSOR. I could make the same distinction for every field of human endeavor. I'm not the first to note the masses of mediocrity; Maimomides also pointed it out but in much crueler terms. I'm trying to be more circumspect. So we'll each pick up the sack we brought when we came to the meeting. Gay gesinter heit, my dear David. You are a wonderful sweet man and I am a jaded and cynical surveyor of these mortal coils.

Mildred: Thank you for your response. I think it owuld be sad if we each came with sacks to a meeting only to leave with the same sack, unopened with no exchanges.

As to your comments, i did not anywhere imply (at least i think not) that you or anyone else should got to mediocre rabis or rabbis of mediocre thought. Yes, Maimonides was an elitist, so you can be in good company. But there are plenty of elite rabbis (I will name three right here and I only name because I have known them personally: Meir Soloveitchik, Eddie Reichman, and Mayer Twersky. Those all happen to be or have been affiliated with YU, but there many others, of course, in all branches of Judaism. So you only like Jonatahan Sachs (and yes, he is Chief Rabbi of th Commonwealth), okay. Why does that produce such a caustic statement that you woldn't want rabbis to decide as opposed to [insert politician, medical doctor, philosopher, or ethicist here]? Let us stay at this meeting until we have found something of value to put in our sacks from the other. And then gei gezunt.

My dear David-I just got something from you to put in my sack. I'm totally out of touch with transliterated yiddish and I got a tremendous joyous jolt from your very subtle correction. Still chuckling. You are a treasure. Maybe I haven't been involved with rabbis of the calibre that seem to be part of your life, but truth be told, I have no high opinion of most medical people, "scientists", politicians, philosophers etc. Of course there are exceptions. I think Abraham Heshcel is an extraordinary human (note the present tense-he's still with me), Ibn Khaldun (threw that in to put you off your stride- but put him in your sack anyway),the odd professor,and even the unique physician who crossed my path. However most of the time I have been astounded by the large egos, small minds and limited knowledge in their own disciplines. I'm a seeker David. What's around the corner? What information is in the Afghan geniza? Why is it that no-one mentions the virulent murderous hate displayed in the Essenene scrolls aside from the biblical remnants? They were nasty nasty people. I think our far distant progenitors, way before the Qumran sect, who lived in the desert and gazed at the sky were philosophers of the highest order. They thought deeply about man's relation to G-D, man's relation to man, and man's relation to his short life on this rotating orb. Somewhere along the way lesser men with lesser abilities injected their own myopic perspective and diminished those philosophical observations and life lessons. And the interpretations and commentaries continue in a downward spiral of ever increasing verbosity and inanity. So-here's my take; Cain slew Abel because this is what humans do. Brothers. fathers snd sons, sons and fathers, strangers, parents and children, spouses-we ascribe reasons for slaughter and murder. Jealousy, money, kingship, medals and awards, territory, defense of home, family, state, religion, economic and/or political ideology-all reasons for man to kill man. A few may be valid-but the story of Cain and Abel is just a simple observation that people kill each other. No bad seed, no angelic sibling- just the usual human behavior. No embellishments and convoluted commentaries needed.I have lots of these-i.e., the Garden of Eden is a curse that stifled free will and clouded the awe of the Creator -Eve saved us all from that one. Who said ignorance is bliss? Voluntary ignorance is a crime. And so I seek for elemental truths embedded in history out of mind (an historical term meaning lost in the long ago) and unadulterated wisdom handed down to us by those who observed without bedecking themselves in cloaks of self espoused personas of great piety and reams of analysis. I'll move along my path-cluttered with ancient hints and lost trails-sniffing at every minute shred of overlooked minutae.
Keep well David

I by no means meant to "correct" your Yiddish and my own transliterations are idiosyncratic (for Yiddish I try to copy German). And of course, by copying German, I would choose gezunt instead of gezint, even though I might pronounce it gezint because at least one grandmother was Galizian.

As ot out other conversation, I don't see why we're talking past each other. I do think rabbis tend to be of at least a little better moral fober than your average ethicists, but even if they weren't, you give no reason to choose some secular ethicist or politican over a rabbi to determine whether you're dead. And that's what all this boils down to. Rabbis are certainly no worse than ethicists or politicans in determining when a Jew is dead. That is what you implied. If you still think what you said was right, I ask you to defend it instead of going off-topic.